The Three C’s of Discipline and Termination

by Joseph "Trey" L. Wood, III

I always preach that when employers are considering disciplining or terminating an employee, they best way to stay out of trouble is to should follow the three C's: Consistency, Communication and Common Sense.

Consistency
Employers must remain consistent in the way they enforce company policies and rules of conduct. Remaining consistent in making decisions promotes credibility while inconsistency suggests bias (discrimination) against individual employees. Consistency is not only important for supervisors within a particular department, but also company-wide.

Communication
Before disciplining an employee, ask yourself if the rule/expectation that the employee violated was actually communicated to the employee. After all, it's rather unfair to discipline an employee for breaking a rule if he/she didn't know the rule was in place. Certainly, this is not true for all instances of misconduct, but it is important for most. (Also, if an employer is going to try and dispute an unemployment claim, it is going to have to prove to the Workforce Commission that the employee knew about the rule before it was violated.)

Common Sense
Before disciplining or terminating an employee, the employer should step away from itself and view the entirety of the situation as objectively as possible. Does the punishment about to be imposed "fit the crime?" Certainly, factors such as seniority and culpability should factor into the decision making process.

I remind everyone of the three C's because of a recent case that came out of California. In the case, the ex-employee sued her employer, Nielsen Media Research, for age discrimination.¹ Christine Earl was hired in 1994 at the age of 47 and her employment progressed as follows:

• August 2005: Verbal warning for leaving gifts at unoccupied households.
• January 2006: Repeat violation.
• February 2006: Placed in "Developmental Improvement Plan" after violating policy requiring the recruiter to keep a company map while recruiting targeted households. 
• September 2006: Performance review overall good, with need to follow policies.
• September 2006: Ms. Earl diagnosed with "peripheral neuropathy" It is a nerve damage condition that worsens with age. 
• October 2006: Ms. Earl mistakenly wrote a household's address, failed to verify it, causing installers to go to the wrong address.
• January 2007: Nielsen terminated Ms. Earl for violations of company policy listed above. She was age 59.

After the employee was fired, Nielsen hired five new employees with the same job title as the employee fired, all of whom were much younger. While the trial court originally dismissed the lawsuit, the California Court of Appeals is sending the case to a jury to decide because it found that a reasonable juror could find that the employer's reason for termination was false because the employee was able to show that the employer applied discipline in an inconsistent manner. In one example, a much younger employee received only discipline for the same type of conduct that Ms. Earl was allegedly fired for. The Court also found that Nielsen deviated from its own policy by terminating her when the policy indicated that she should have been placed on a performance improvement plan.

In the end, this is another fine example of an employer who did not follow the three C's and may, ultimately, have to pay for its mistake.

_{1 Earl v. Nielsen Media Research, Inc.}